BRIEFING PAPER

Number 9164, 12 March 2021

Police, Crime, Sentencing

and Courts Bill: Part 3 and 4, By Jennifer Brown
Public order and Sally Lipscombe

unauthorised encampments

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary

2 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

Contents
Summary 3
1. Background: Part 3, public order 5
1.1 Human rights 6
1.2 A case for legislative reform? 7
1.3 2021 Inspection 10
2. Amending the Public Order Act 1986 12
2.1 1986 Act police powers 12
2.2 Clause 54 to 56 and clause 60 14
3. Protests around Parliament 17
3.1 Current legislation 17
3.2 Previous legislation 18
3.3 Recent concerns 18
3.4 Clause 57 and 58 20
4. Public nuisance 21
4.1 The common law offence 21
4.2 The Law Commission’s review 22
4.3 Clause 59 23
5. Part 4, unauthorised encampments 25
5.1 What are unauthorised encampments? 25
5.2 Existing public order powers 26
5.3 Pre-legislative consultation 27
5.4 Clauses 61 to 63 31

Cover page image copyright: Photo by Ehimetalor Akhere Unuabona on Unsplash

3 Commons Library Briefing, 12 March 2021

Summary
This briefing paper is one of a collection of Commons Library briefing papers on the Protection
of the Police, Crime, Sentencing and Courts Bill (the Bill). It deals only with the provisions in
Part 3 and 4 of the Bill which concern police powers related to protests and unauthorised
encampments. Briefing papers dealing with other parts of the Bill and general background,
are available on the Commons Library website.

Parts 3 and 4 of the Police, Crime, Sentencing and Courts Bill (the Bill) would amend
various pieces of public order law, making significant changes to how protests and
unauthorised encampments (Gypsy and Traveller sites associated with trespass) are
policed.
Protests
Part 3 (clauses 54 to 60), of the Bill would make major changes to the way protests are
policed in England and Wales:
• Clauses 54 to 56 and 60 would amend police powers in the Public Order Act 1986
so police can impose conditions on protests that are noisy enough to cause
“intimidation or harassment” or “serious unease, alarm or distress” to bystanders.
• Clauses 57 and 58 would amend provisions in the Police Reform and Social
Responsibility Act 2011 to expand the “controlled area” around Parliament where
certain protest activities are prohibited. It would also add obstructing access to the
Parliamentary Estate to the activities prohibited in the “controlled area”.
• Clause 59 would abolish the common law offence of public nuisance and replace it
with a new statutory offence of “intentionally or recklessly causing public
nuisance”.
The Bill’s Explanatory Notes say the measures are necessary because recent
changes in the tactics employed by certain protesters, for example gluing themselves
to buildings or vehicles, blocking bridges or otherwise obstructing access to buildings
such as the Palace of Westminster and newspaper printing works, have highlighted
some gaps in current legislation.

Unauthorised encampments
Part 4 (clauses 61 to 63) of the Bill would amend the Criminal Justice and Public Order
Act 1994 (CJPOA) to:
• create a new offence of “residing on land without consent in or with a vehicle”.
• amend the existing police powers associated with unauthorised encampments in the
CJPOA to lower the threshold at which they can be used, allow the police to remove
unauthorised encampments on (or partly on) highways and prohibit unauthorised
encampments moved from a site from returning within twelve months.
Reaction
Parts 3 and 4 are amongst the most controversial provisions in the Bill.
Her Majesty’s Inspectorate of Constabulary, Fire & Rescue Services has given their
“qualified support for…. Home Office proposals for changes in the law”. They say they
“would improve the effectiveness of protest policing, as long as they are applied
proportionately and in line with human rights law”. Human rights advocates have not
4 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

agreed. Gracie Bradley (the Director of Liberty) says the provisions concerning protest will
“undermine protest, which is the lifeblood of a healthy democracy”.
The Government’s pre-legislative consultation regarding unauthorised encampments
generated a number of organised campaigns in opposition including an e-petition which
garnered 134,932 signatures. The petition called the Government’s proposed criminal
offence “extreme, illiberal and unnecessary”.
The Government says there is an “appetite to extend powers available to the police when
dealing with unauthorised encampments” particularly from local authorities. It says it the
new offence, in combination with its proposed amendments to the CJPOA will
give police the tools to deal with a variety of harms caused by unauthorised
encampments in a proportionate, effective and efficient manner.
It says the new offence will not affect ramblers and that its intention is to “deter
trespassers from setting up or residing on an unauthorised encampment.”
5 Commons Library Briefing, 12 March 2021

1. Background: Part 3, public

order
Part 3 (clauses 54 to 60) of the Police, Crime, Sentencing and Courts
Bill (the Bill) would make major changes to the way protests are policed
in England and Wales:
• Clause 54 to 56 and 60 would amend police powers in the
Public Order Act 1986 so police can impose conditions on protests
that are noisy enough to cause “intimidation or harassment” or
“serious unease, alarm or distress” to bystanders.
• Clause 57 and 58 would amend provisions in the Police Reform
and Social Responsibility Act 2011 to expand the “controlled
area” around Parliament where certain protest activities are
prohibited. It would also add obstructing access to the
Parliamentary Estate to the activities prohibited in the “controlled
area”.
• Clause 59 would abolish the common law offence of public
nuisance and replace it with a new statutory offence of
intentionally or recklessly causing public nuisance, following
recommendations made by the Law Commission in 2015.
The Bill’s Explanatory Notes say the measures are necessary:
Recent changes in the tactics employed by certain protesters, for
example gluing themselves to buildings or vehicles, blocking
bridges or otherwise obstructing access to buildings such as the
Palace of Westminster and newspaper printing works, have
highlighted some gaps in current legislation. 1
In September 2020, Kit Malthouse (the Minister for Crime and Policing)
promised the House of Commons the Government would make sure
the police have “exactly the tools they need, from a legal and practical
point of view” to respond to challenging protests. 2
The Home Office has asked Her Majesty’s Inspectorate of Constabulary
and Fire & Rescue Services to conduct a new inspection of the police
response to protest, including an assessment of the legislative
framework for police powers. 3 The Inspectorate published its report on
11 March 2021 (two days after this Bill was introduced to Parliament).
HMICFRS offered their “qualified support for…. Home Office proposals
for changes in the law”. 4

1
ENs, para 67
2
HC Deb, Birmingham Attacks and Extinction Rebellion Protests, 7 September 2020,
c388
3
HMICFRS, Terms of reference: inspection of the policing of protests, 5 October 2020
4
HMICFRS,
6 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

Much of the information in this section is taken from the Library briefing police powers:
policing protests. That briefing provides further information about the current police powers
and guidance connected with protest.

1.1 Human rights

The right to freedom of expression and assembly are fundamental
aspects of a liberal democratic society. These rights ensure that people
have the freedom to peacefully protest. Articles 10 and 11 of the
European Convention of Human Rights (ECHR) provide for these rights.
Article 10 of the ECHR provides for the right to “freedom of
expression”. It states that individuals have:
freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless
of frontiers. 5
Article 11 provides for the “freedom of peaceful assembly and freedom
of association with others”. 6
The UK is a signatory of the ECHR and therefore obliged to ensure that
ECHR rights are protected. UK citizens can take cases to the European
Court of Human Rights if they think their convention rights have been
breached and they have exhausted any potential domestic remedies.
The Human Rights Act 1998 gave domestic effect to the ECHR. This
means that individuals can bring claims based on breaches of
Convention rights before the UK courts. Schedule 1 of the Act sets out
the Articles of the Convention. Section 2 of the Act requires UK courts
to ‘take account’ of judgments of the European Court of Human Rights
(ECtHR) when considering a claim concerning Convention rights.
However, the UK courts are not bound to follow judgments of the
ECtHR.
The rights to freedom of expression and assembly guaranteed by
Articles 10 and 11 are ‘qualified rights’ rather than ‘absolute rights’.
This means that interference with these rights may be justified if the
basis for doing so is clearly set out by the law; it is necessary in pursuit
of a legitimate aim; and the interference is proportionate to that aim.
Legitimate grounds for restricting these rights include national security
or public safety; the prevention or crime or disorder; and, the protection
of the rights and freedoms of others.
Police powers to restrict protests must therefore be exercised in a way
that is proportionate to one of these aims in order to be compatible
with the ECHR. This includes a positive duty to protect those exercising
their right to protest peacefully. 7

5
European Convention on Human Rights, Article 10
6
Ibid, Article 11
7
Ibid
7 Commons Library Briefing, 12 March 2021

1.2 A case for legislative reform?

Several recent high-profile protest events have resulted in fresh calls to
reform the policing of protests. Concerns have been raised with the
policing of simultaneous protests, the ability of the police to move non-
violent protests causing serious disruption and the police response to
the use of insulting language.
Simultaneous protests
Extinction Rebellion (XR) members took part in two London “uprisings”
in 2019, a “spring uprising” in April and an “autumn uprising” in
October. Both uprisings lasted several days and involved multiple protest
sites across central London. The existence of multiple simultaneous
protest sites made the use of section 14, Public Order Act 1986 orders
complex.

Section 14, Public Order Act 1986

Section 2.1 of this briefing provides a description of all of the police’s powers in the 1986 Act.
Section 14 of the Public Order Act 1986 allows senior police officers to issue directions to
persons taking part in, or planning, a static protest. Whilst the police can impose any
condition necessary on a protest march, they can only impose conditions on static protests
which specify where a protest can take place, for how long it can last and how many people
can be involved. 8
Senior police officers can only issue a direction on a protest under the Public Order Act 1986 if
they “reasonably believe”:
• the protest may result in serious public disorder, serious damage to property or the
serious disruption to the life of the community; or,
• the purpose of the protest is to intimidate others and compel them “not to do an act
they have a right to do, or to do an act they have a right not to do.”9
Protestors who do not comply with a police direction are committing an offence. Before
arresting somebody for such an offence, the police should inform them they are in breach of
the condition and give them an opportunity to follow it. Those convicted of not complying
with a condition can be fined or imprisoned. 10

During the spring uprising the Metropolitan Police Service (MPS) issued
numerous section 14 orders on individual XR gatherings. These orders
required the protestors to move to Marble Arch. They were designed to
limit their ability to disrupt transport networks. The process of issuing
orders and arresting those who were non-compliant was at times slow
and some commentators questioned why the police were not using
force to move the protestors quickly. 11
Following the protest, MPS Commander Adrian Usher questioned
whether the 1986 Act provided them with appropriate powers to deal
with this kind of protest:

8
s14(1), Public Order Act 1986
9
s12(1) and s14(1), Public Order Act 1986
10
s12(10) and s14(10), Public Order Act 1986
11
Financial Times, Climate protests unsettle police and politicians, 18 April 2019
8 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

We will conduct a sober review of our tactics against recent

protests, which is likely to say that the legislation associated with
policing protest is quite dated, that policing and protest has
moved on and that legislation should follow suit. 12
The MPS’ use of section 14 during the autumn uprising was found
unlawful in the High Court. Initially the MPS issued similar orders to
those during the spring uprising. However, protestors continued to
move around London regrouping at different locations to avoid police
action. 13 In response the police issued an unusual section 14 order. An
order issued on 14 October 2019 stated:
Any assembly linked to the Extinction Rebellion ‘Autumn
Uprising’… must now cease their protest(s) within London
(Metropolitan Police Service, and City of London areas) by
21:00hrs [on Monday] 14th October 2019. 14
The order was unusual in that this single order applied across London.
This contrasts to the police’s previous approach, issuing separate orders
on individual XR gatherings.
The MPS lifted the October 14 order four days later stating that it was
“no longer necessary”. During the autumn protest the police arrested
1,832 people. Some of those arrested were charged with failing to
comply with the above section 14 orders issued by the MPS. 15
Human rights campaign groups were immediately critical of the section
14 order issued on the 14 October. Amnesty International and Liberty
both argued that it was a disproportionate response to the XR
protests. 16
Several XR protestors challenged the October 14 order in the courts. On
6 November 2019 the High Court concluded the decision to impose the
order had been unlawful. 17
In R. (on the application of Jones) v Commissioner of the Police of the
Metropolis [2019], the High Court found the 14 October order
unlawful. There were two main reasons for this:
• Because it wrongly treated the XR demonstrations as one single
protest. The court found that section 14 powers can only be used
to place conditions on a specific single protest and not a group of
connected protests happening in different locations at the same
time. 18

12
Joint Committee on Human Rights Uncorrected oral evidence: Democracy, privacy,
free speech and freedom of association, HC 1890, Wednesday 24 April 2019, Q12
13
EWHC 2957, paragraphs 24-27
14
Metropolitan Police, *UPDATE* Conditions imposed on Extinction Rebellion protests,
15 October 2019
15
Ibid
16
Amnesty International UK, Extinction Rebellion blanket ban chilling and unlawful, 15
October 2019 & Liberty, The Met’s XR protest ban is ‘grossly disproportionate’, 15
October 2019
17
EWHC 2957, paragraph 72
18
EWHC 2957, paragraphs 65-69
9 Commons Library Briefing, 12 March 2021

• Because it effectively enabled the MPS to prohibit future protests.

A power not intended by section 14 of the Public Order Act
1986. 19
Assistant Commissioner of the MPS Nick Ephgrave commented
following the judgment. He said that the
…case highlights that policing demonstrations like these, within
the existing legal framework, can be challenging. 20
Liberty and Amnesty International both welcomed the judgment. Liberty
said the ruling would “help safeguard future protests from police
overreach”. 21 Amnesty International said there must now be “no
repeats of this attempt to suppress legitimate non-violent protest”. 22
Difficulty moving protestors
Several recent protests have involved “sit ins”. Protestors make it hard
for police to move them by using tactics like “lock-on”. Lock-on involves
protestors affixing themselves (using a variety of techniques) to objects
or buildings. These tactics do present police with challenges, but they
are not particularly novel. 23 The police have been able to use existing
laws (like obstruction of the highway and aggravated trespass) to
respond to these sorts of protests.
XR newspaper protests (September 2020)
During Extinction Rebellion (XR) protests in September 2020, XR
members erected bamboo structures, some glued themselves to these
structures, outside of multiple printing presses for News Corp
newspapers (the Sun and the Times). The papers were the target of XR
protests for failing to “report on the climate and ecological
emergency”. 24
Police personnel from multiple forces across the UK were involved in
responding to the protests. Eighty-one protesters were arrested and
charged with obstruction of the highway at protests in Broxbourne and
Knowsley. Protests in Scotland resulted in no arrests because “no
disruption was caused”. 25 Protestors erected the bamboo structures on
the evening of 4 September 2020, the protests were cleared by the
afternoon of 5 September 2020. 26 Herefordshire Police said the
operation required “highly specialist resources and cutting equipment in
order to safely remove the protesters from their locations". 27

19
Ibid, paragraph 71
20
Metropolitan Police, Statement on judgement re Extinction Rebellion protests, 6
November 2019
21
Liberty, Extinction Rebellion High Court win a ‘victory for protest rights’, 6 November
22
Amnesty International UK, Police ban on Extinction Rebellion protests unlawful,
court rules, 6 November 2019
23
See: National Police Improvement Agency, ACPO manual of guidance on dealing
with the removal of protestors: 2006-2007, 2007
24
BBC News, Extinction Rebellion protesters block newspaper printing presses, 5
September 2020; HC Deb, Birmingham Attacks and Extinction Rebellion Protests, 7
September 2020
25
HC Deb, Birmingham Attacks and Extinction Rebellion Protests, 7 September 2020,
c384
26
Ibid
27
BBC News, Extinction Rebellion protesters block newspaper printing presses, 5
September 2020
10 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

HS2 Euston Square protest (January/ February 2021)

Protestors objecting to the construction of the HS2 railway line
tunnelled underneath Euston square. 28 Some then locked themselves to
the structure. 29 The protestors were knowingly trespassing and were
removed on the basis of civil orders granted by the courts. 30 The process
of removing the protestors from the makeshift tunnels was complex.
The final protester left the site on 26 February 2021. 31

1.3 2021 Inspection

The Home Office has asked Her Majesty’s Inspectorate of Constabulary
and Fire & Rescue Services to conduct an inspection of the police
response to protest, including an assessment of the legislative
framework for police powers. 32 The Inspectorate published its report:
Getting the balance right? An inspection of how effectively the police
deal with protests on 11 March 2021 (two days after this Bill was
introduced to Parliament). HMICFRS offered their “qualified support”
for the provisions in the Bill. 33
The Report’s associated press release summarises its content:
HMICFRS said police forces are usually good at planning for
protests. They work effectively with other organisations, and
make good use of equipment and technology, such as drones.
However, HMICFRS found that when police forces do not
accurately assess the level of disruption caused, or likely to be
caused, by a protest, the balance may tip too readily in favour of
protesters.
After speaking to police forces, protest groups, businesses and the
wider public, the inspectorate said a modest reset of the scales is
needed.
The inspectorate was asked by the Home Office to comment on
proposed changes to legislation. HMICFRS concluded that, with
some qualifications, changes to the law – such as widening the
conditions police can impose on static protests – would improve
the effectiveness of protest policing, as long as they are applied
proportionately and in line with human rights law. 34
Human rights advocacy groups have not agreed with the Inspectorate’s
assessment. Emmanuelle Andrews, policy and campaigns officer at
Liberty is quoted in the Guardian:
These plans are a staggering assault on our right to protest as well
as an attack on other fundamental rights.

28
BBC News, HS2 protesters dig tunnel to thwart Euston eviction, 26 January 2021
29
BBC News, Euston tunnel protests: Father fears for children's lives, 6 February 2021
30
[2021] EWHC 246 (Admin), 10 February 2021
31
The Guardian, Anti-HS2 tunnel protest at Euston ends as final activist leaves, 26
February 2021
32
HMICFRS, Terms of reference: inspection of the policing of protests, 5 October 2020
33
Getting the balance right? An inspection of how effectively the police deal with
protests, March 2021, p2
34
HMICFRS, Police need to find the correct balance between the rights of protesters
and the rights of others, March 2021
11 Commons Library Briefing, 12 March 2021

Police already have extensive powers to restrict protests, and

frequently go beyond them even though it is their duty to
facilitate the exercise of this right.
We are still in the grip of a pandemic that has changed all our
lives, handed enormous powers to the government and
dramatically restricted our protest rights. The proposals in the
policing bill are an opportunistic bid from the government to
permanently erode our rights.
We must reject the politics of division that the government is
exploiting through this bill, and protect each other and our ability
to stand up to power. 35

35
Guardian, Civil liberties groups call police plans for demos an 'assault' on right to
protest | UK civil liberties, 11 March 2021
12 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

2. Amending the Public Order Act

1986
2.1 1986 Act police powers
Part II of Public Order Act 1986 provides police with powers to manage
protests. The Act classifies two types of protest: a ‘public procession’
and a ‘public assembly’.
A ‘public procession’ is a protest march intended to demonstrate
support or opposition for a particular view, publicise a campaign or
commemorate an event. 36 Processions that are “commonly or
customarily” held in a certain area are excluded from the definition.
A ‘public assembly’ is a gathering of “two or more people that is wholly
or partly open to the air” (essentially, gatherings which are outside). 37
This briefing will use the term static protest when referring to the
concept of ‘public assembly’ as defined in the Public Order Act 1986. 38
Police powers associated with protest marches and static protests are
similar. However, there are stronger powers to police protest marches.
The 1986 Act provides the police with three powers:
• It requires individuals to notify the police when they are planning
a protest march.
• It allows the police to request a protest march is prohibited if they
have a serious public order concern. The police have more limited
powers to request certain types of static protests are prohibited.
• It allows the police to impose conditions on any protests they
suspect will cause serious damage to property, serious disruption
or will incite unlawful behaviour. The Bill would amend these
condition powers.
Notifications
Section 11 of the Public Order Act 1986 requires those organising a
protest march to notify the police. The notice must specify the date,
time and route of the proposed march and provide the police with the
details of those who are organising it. The 1986 Act requires the notice
to be given six days prior to the march unless it is “not reasonably
practicable”. 39
There is no requirement to notify the police of plans to conduct a static
protest.
It is an offence to organise (not to take part in) a protest march without
notifying the police. It is also an offence for the organiser to change the

36
s11(1), Public Order Act 1986
37
s16, Public Order Act 1986 [as amended by s57, Anti-social Behaviour Act 2003]
38
The term static protest is used frequently in official guidance documents. The consist
use of the term ‘static protest’ is used in this paper to avoid confusion.
39
s11(2) and s11(6), Public Order Act 1986
13 Commons Library Briefing, 12 March 2021

route, date and time of a march once the police have been notified.
Those convicted of these offences can be fined. 40
Prohibiting protests
The police can request that the relevant local authority ban a planned
protest march. They can only do so if they have a serious concern about
their ability to safely police the proposed march. 41 Local authorities
must seek the consent of the Home Secretary before prohibiting a
march. 42 In London, the Metropolitan Police (and City of London Police)
must apply directly to the Home Secretary for a march to be
prohibited. 43
It is an offence to organise (not to take part in) a protest march that has
been prohibited. Those convicted of this offence can be fined or
imprisoned.

Powers in practice: Prohibiting protest marches

The Home Office signed 12 ‘banning orders’ on protest marches between 2005 and 2012. 44 Of these
10 were associated with far-right political groups (The English Defence League and the National Front)
and 2 were associated with anti-capitalist and anti-globalisation groups. In 2011, in a high-profile case,
the then Home Secretary Theresa May agreed to ban a planned march of the English Defence League
(EDL) in Tower Hamlets. 45 There had been concerns about the ‘public order implications’ of the EDL
march and the demonstrations that were planned to oppose it. 46
The Home Office has not received a request to ban a march since the proposed protest in Tower
Hamlets in 2011. 47

Unlike protest marches, static protests cannot be prohibited because of

a general concern for public order. The police can only request a static
protest is banned if they have a serious public order concern and they
think it is likely to be held on private land without the permission of the
land’s owner. 48 The police have powers to stop and search those they
believe are on their way to a ‘static protest’ which has been
prohibited. 49
Conditions
The police can issue conditions on planned or ongoing protests to
maintain public order. Their powers to issue conditions on protest
marches are more wide-ranging than those for static protests.
Section 12 of the Public Order Act 1986 allows senior police officers to
issue a direction to individuals taking part in a protest march. These

40
s11(7) and s11(10), Public Order Act 1986
41
s13(1), Public Order Act 1986
42
s13(2), Public Order Act 1986
43
S13(4), Public Order Act 1986
44
Home Office, FOI release: Applications for a banning order under section 12 of the
Public Order Act 1986, 6 June 2014
45
Home Office, Home Secretary agrees march ban, 21 August 2011
46
Ibid
47
Home Office, Freedom of information request reference: 53776, 14 June 2019
[information provided upon request]
48
s14A, Public Order Act 1986 [as inserted by s70, Criminal Justice and Public Order
Act 1994]
49
s14C, Public Order Act 1986 [as inserted by s71, Criminal Justice and Public Order
Act 1994]
14 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

directions can impose any condition on the protest march that is

“necessary to prevent disorder, damage, disruption or intimidation”.
This could include proscribing what route the march must take. 50
Section 14 of the Public Order Act 1986 allows senior police officers to
issue directions to persons taking part in, or planning, a static protest.
Whilst the police can impose any condition necessary on a protest
march, they can only impose conditions on static protests which specify
where a protest can take place, for how long it can last and how many
people can be involved. 51
Senior police officers can only issue a direction on a protest under the
Public Order Act 1986 if they “reasonably believe”:
• the protest may result in serious public disorder, serious damage
to property or the serious disruption to the life of the community;
or
• the purpose of the protest is to intimidate others and compel
them “not to do an act they have a right to do, or to do an act
they have a right not to do.” 52
Protestors who do not comply with a police direction are committing an
offence. Before arresting somebody for such an offence, the police
should inform them they are in breach of the condition and give them
an opportunity to follow it. Those convicted of not complying with a
condition can be fined or imprisoned. 53

Powers in practice: Conditions on protests

The Metropolitan Police issued numerous conditions on the ‘Extinction Rebellion’ (XR) protests that took
place across central London in April 2019. The XR demonstrations were calling for the Government to
take stronger action to combat climate change. The protests were non-violent but caused disruption to
transport networks. Protestors gathered across central London. The Metropolitan Police issued several
conditions under section 14 of the Public Order Act 1986 requiring the protestors to restrict their
activity to Marble Arch. The police said that the orders were necessary to “prevent ongoing serious
disruptions to communities”. 54 During the protest the police arrested over a thousand people, many of
those arrested have since been charged. Criminal trials took place at London Magistrates Court over the
summer of 2019. 55
The use of section 14 powers at a similar XR protest in October 2019 was subsequently challenged in
the courts. This legal challenge and the High Court’s findings are discussed in section 1.2 of this
briefing.

2.2 Clause 54 to 56 and clause 60

Clauses 54 to 56 and clause 60 would make significant changes to the
police powers, contained in the Public Order Act 1986, to respond to
protests. The clauses would:
• Significantly lower the legal test that must be met for the
police to issue conditions on protests. Under the Bill the police

50
s12(1), Public Order Act 1986
51
s14(1), Public Order Act 1986
52
s12(1) and s14(1), Public Order Act 1986
53
s12(10) and s14(10), Public Order Act 1986
54
Metropolitan Police, Update: Extinction Rebellion - arrests & condition extension, 18
April 2019
55
BBC News, First Extinction Rebellion protesters appear in court, 12 July
15 Commons Library Briefing, 12 March 2021

would be able to issue conditions on protests when they are noisy

enough to cause “intimidation or harassment” or “serious
unease, alarm or distress” to bystanders.
• Widen the types of conditions police can issue on static
protests to match their powers relating to protest marches.
Under the Bill police would be able to issue any condition they
think is necessary on static protests to prevent “disorder, damage,
disruption, impact or intimidation”.
• Amend the offence of failing to comply with a condition
issued by the police on a protest. It would remove the legal
test that requires protestors “knowingly” breach a condition to
commit an offence. People would commit the amended offence if
the disobeyed a condition they ‘ought to have known’ was in
force.
• Allow the police to issue conditions on one-person protests.
Currently protests must involve at least two people to engage
police powers.
Taken together the amendments to the 1986 Act would significantly
expand the types of protests the police could impose conditions on.
They would also widen the types of conditions the police could issue on
static protests.
The Inspectorate of Constabulary gave its view on two of these
proposals (and a proposal to expand stop and search powers that has
not made it into the Bill) in their 2021 inspection of the policing of
protests. They said the current test for imposing conditions is “too
high”. 56 They agreed with the Government that the distinction the 1986
Act currently makes between protest marches and static protests is “is
an unjustified inconsistency in the current law”. 57
Lowering the legal test for police conditions on
protests
Clause 54 would amend section 12 of the Public Order Act 1986 so
police officers can issue conditions on protest marches which generate
noise that may have “significant relevant impact on persons in the
vicinity” or may result in “serious disruption to the activities of an
organisation” in the vicinity. 58
Under clause 54 noise would have a “relevant impact” if it may result
in the “intimidation or harassment” or “serious unease, alarm or
distress” to bystanders.
Before using their amended section 12 powers to issue conditions on a
protest the police would have to consider:
• the likely number of persons affected by the protest;
• the likely duration of the impact; and
• the likely “intensity” of the impact.

56
HMICFRS, Getting the balance right? An inspection of how effectively the police
deal with protests, March 2021, p116
57
Ibid, p111
58
ENs, para 516
16 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

Clause 54 would also give the Secretary of State regulatory powers to

further define the meaning of “serious disruption to the activities of an
organisation” in the amended section 12. These regulations would be
made using the affirmative procedure.
Clause 55 would amend section 14 of the 1986 Act in the same way as
clause 54 amends section 12. 59 This would allow officers to issue
conditions on static protests that are noisy enough to cause
“intimidation or harassment” or “serious unease, alarm or distress” to
bystanders.
Clause 55 would also amend section 14 so police can issue any
condition they think is necessary on static protests to prevent “disorder,
damage, disruption, impact or intimidation”. This would bring the law
regarding conditions static protests in line with that on protest
marches. 60
Amending the offence
Clause 56 would amend the offence associated with failure to comply
with a police condition issued on a protest. It would remove the need to
prove a defendant “knowingly” disobeyed a direction. The court would
only need to find a defendant failed to be comply with a condition they
“ought to have known” had been imposed to find them guilty. 61
Giving police powers to place conditions on one-
person protests
Clause 60 would insert a new a new section 14ZA into the 1986 Act.
This would allow the police to impose conditions on a one-person
protest which they “reasonably believe” may be noisy enough to cause
“intimidation or harassment” or “serious unease, alarm or distress” to
bystanders. The police would have to follow similar rules when issuing
conditions on a one-person protest under section 14ZA as they will have
to under the amended section 12 and 14. 62 At present, the police
cannot issue conditions on one-person protests because they do not
meet the definition of “static protest” provided for in the 1986 Act.
Under the 1986 Act “static protests” must involve at least two people.

59
ENs, para 520
60
ENs, 521
61
ENs, para 523
62
ENs, paras 545- 555
17 Commons Library Briefing, 12 March 2021

3. Protests around Parliament

The background information provided here is taken from the Library’s briefing Protests around
Parliament. That briefing provides further information relevant to clauses 57 and 58 of the Bill.

3.1 Current legislation

Protests around parliament are, for the most part, policed like any
demonstration in the rest of the country. However, there are two special
provisions for protests around parliament.
• Provisions in the Police Reform and Social Responsibility Act 2011
create a ‘controlled area’ area around parliament where the
unauthorised use of loudspeakers, the erecting of tents and the
use of ‘sleeping equipment’ is prohibited.
• Byelaws of the Greater London Authority (GLA) require protestors
to seek written permission from the GLA to hold a demonstration
on Parliament Square Garden.
Police Reform and Social Responsibility Act 2011
The 2011 Act introduced a “controlled area” around Parliament; this
was then extended by the Anti-social Behaviour, Crime and Policing Act
2014 to include a wider area. The full “controlled area” now comprises:
• Parliament Square garden;
• the footways immediately adjoining the central garden of
Parliament Square; and
• highways and gardens next to the Palace of Westminster.
Activities prohibited in the “controlled area” include:
• unauthorised use of amplified noise equipment, like
loudspeakers or loudhailers (applications for authorisation can
be made to the relevant authorities);
• erecting or using tents or structures for facilitating sleeping; and
• using or intending to use sleeping equipment, like sleeping bags
or mattresses.
The police or authorised officers can direct people to stop these
activities and leave the area; if they do not, police can use reasonable
force to seize property.
The Home Office has issued guidance on these provisions which
provides an overview of the relevant legislation and explains how it
should be implemented. 63

63
Home Office, Police Reform and Social Responsibility Act 2011: Guidance on the
provisions relating to Parliament Square and the area surrounding the palace of
Westminster, 2014
18 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

Byelaws of the Greater London Authority

In 2012, the GLA revised its Parliament Square Garden Byelaws. The
byelaws aim to secure the management of the Square, preserve order
and prevent abuse. They require those wishing to protest on Parliament
Square Garden to obtain prior permission to do so from the GLA. It is a
criminal offence to contravene the bylaws, punishable by fine.

3.2 Previous legislation

Previously, sections 132 to 138 of the Serious Organised Crime and
Police Act 2005 (SOCPA) meant that demonstrations within a
“designated area” of one kilometre from Parliament required prior
authority from the Metropolitan Police. The police could impose
conditions and loudspeakers and loudhailers were banned. The 2011
Act repealed sections 132 to 138 of SOCPA.
Before SOCPA, additional provisions for protests around Parliament took
the form of Sessional Orders (in the House of Commons) and Stoppage
Orders (in the House of Lords). These Orders instructed the police to
make regulations to ensure MPs could access Parliament unobstructed.
However, the police had no powers to arrest those who did not comply
with these regulations. Therefore, legal advice given to Parliament and
the Metropolitan Police was that the Orders had no legal effect.

3.3 Recent concerns

In recent years there has been increased protest activity in the area
surrounding Parliament. Pro-Brexit and pro-remain protesters have
regularly gathered near Parliament; climate change activists Extinction
Rebellion have also made Parliament a key focus of their
demonstrations.
Some are concerned that these protests are obstructing access to
Parliament. There have been calls for the police to take stronger action
against those who heckle MPs outside Parliament and for legislative
reform to protect access to the Palace of Westminster.
The harassment of MPs outside Parliament
There has been increasing concern that MPs and their staff are subject
to harassment and abuse by protesters as they enter and exit
Parliament.
In January 2019 John Bercow, then Speaker of the House of Commons,
wrote to the Commissioner of the Metropolitan Police, Cressida Dick, to
raise the issue. 64 He asked her to “increase security for Members,
journalists and visitors to the parliamentary estate, and ensure there is
safe access to and from Abingdon Green”. 65
The Speaker reported to the House that he had:

64
HCDeb, Speaker’s Statement, 8 January 2019, c171
65
Speaker’s House, Letter dated 8th January 2019 to the Commissioner of the
Metropolitan Police [last accessed 30/04/19]
19 Commons Library Briefing, 12 March 2021

…received a very full and encouraging reply from Cressida Dick. I

will not read it out to the House, but she, while quite properly
explaining how seriously she and her officers take their
responsibilities, went on to seek to assure me of an increased
police presence and, to some degree, a changed mindset in terms
of the importance of proactive measures. 66
In February 2019 the Joint Committee on Human Rights (JCHR)
launched an inquiry into Democracy, free speech and freedom of
association. In evidence to the JCHR, Metropolitan Police Commander
Adrian Usher discussed the intimidation of MPs outside Parliament by
protestors. He said that officers had not engaged in situations because
“the criminal threshold had not been reached”. He went onto to say
that the briefing to officers has now changed:
The officers outside Parliament have come from other duties all
over London in order to be deployed there. They receive a briefing
every day when they are deployed on the ground, and that
briefing changed to include this exact point: they can step in even
if it does not constitute a crime at that point, engage with the
individual and tell them to calm down, just as any other human
being would. We put a system in place to provide some security
for MPs as they step across the road to College Green. 67
In their subsequent report for the inquiry the JCHR concluded that there
should be a “zero tolerance approach to obstruction and intimidation
around Westminster”. 68
Protecting access to the Palace of Westminster
In their inquiry report into Democracy, free speech and freedom of
association the JCHR recommended that new legislation should be
introduced to place a statutory duty on the police to protect the right of
access to the parliamentary estate. 69
A new statutory duty for the police to protect access to Parliament
would have a similar effect to the Sessional and Stoppage Orders which
fell out of use following the passing of the Serious Organised Crime and
Police Act 2005. The Committee argued those Orders gave a “clear
signal that the right of access to Parliament, for everyone who has
business there, was important” and expressed “regret” that they had
been discontinued. 70
The Committee also recommended that the Metropolitan Police should
convene a joint group, with representation from all parties involved in
security around Parliament, to “consider and report on the framework
for control” of the area around Parliament. 71 The Committee argued
that there is a case for “considering both legislative change in control of

66
HCDeb, Points of Order, 16 January 2019 c1166
67
Joint Committee on Human Rights Uncorrected oral evidence: Democracy, privacy,
free speech and freedom of association, HC 1890, Wednesday 24 April 2019, Q16
68
House of Commons Joint Committee on Human Rights, Democracy, freedom of
expression and freedom of association: Threats to MPs, First Report of Session 2019–
20, 19 October 2019, paragraph 76
69
Ibid, paragraph 72
70
Ibid
71
Ibid, paragraph 78
20 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

the area… and whether physical security should be enhanced by

measures such as pedestrianisation”. 72

3.4 Clause 57 and 58

Clause 57 would amend Police Reform and Social Responsibility Act
2011 (PRSRA) to:
• Expand the “controlled area” around Parliament to include Canon
Row, Parliament Street, Derby Gate, Parliament Square and part
of Victoria Embankment. 73 The amended area would still be far
smaller than the “designated area” under SOCAP. 74
• Add “obstructing of the passage of a vehicle into or out of the
Parliamentary Estate” to the prohibited activities in the controlled
area. 75 “Obstructing a highway” is already a criminal offence
under Section 137 of the Highways Act 1980. This amendment
would ensure prohibiting access to the Parliamentary Estate was
prohibited but would not give the police powers to arrest those
who contravene it.
Clause 58 would provide the Secretary of State regulatory powers to
make similar powers relating to an area other than the Palace of
Westminster if the Houses of Parliament are located there whilst
building works are carried out on the Palace. 76 The clause appears to
help ensure similar rules regarding protest can be imposed around the
temporary home for Parliament during the Restoration and Renewal of
the Palace of Westminster.

72
Ibid, paragraph 77
73
ENs, para 531
74
See: Home Office, The Governance of Britain: Managing Protest around Parliament,
October 2007, Annex F
75
ENs, para 532
76
ENs, para 536
21 Commons Library Briefing, 12 March 2021

4. Public nuisance
Clause 59 would replace the common law offence of causing a public
nuisance with a new statutory offence of “intentionally or recklessly
causing public nuisance”.

4.1 The common law offence

Public nuisance is an offence at common law. The practitioners’ text
Archbold sets out the following definition, as developed by the courts:
A person is guilty of a public nuisance (also known as common
nuisance), who –
(a) does an act not warranted by law, or
(b) omits to discharge a legal duty,
if the effect of the act or omission is to endanger the life, health,
property or comfort of the public, or to obstruct the public in the
exercise or enjoyment of rights common to all her Majesty’s
subjects. 77
Archbold notes that this definition was approved by the House of Lords
in Rimmington; Goldstein [2005] UKHL 63,
in which the House of Lords held that the definition was clear,
precise, adequate and based on a rational and discernible
principle so that it had the certainty and predictability necessary to
meet the requirements of the common law and of art.7 of the
ECHR that the citizen should be able to foresee, if need be with
appropriate advice, the consequences which a course of action
might entail. 78
In terms of fault – mens rea – the offence is committed where the
defendant knew or ought to have known of the risk of the kind of
nuisance that in fact occurred. This test is one of negligence. There is no
requirement for the prosecution to prove intent or recklessness, which
are higher thresholds.
The House of Lords made clear in Rimmington that where the conduct
in question is criminalised by a particular statutory provision, then
“good practice and respect for the primacy of statute” would normally
require prosecutors to use that provision rather than public nuisance
“unless there is good reason for doing otherwise”. 79
The Law Commission has noted that the offence has been used to
prosecute a wide range of conduct, beyond that which was
“traditionally” thought of as public nuisance:
The offence of public nuisance was traditionally used to deal with
obstructing the public highway (including rivers) and activities
causing a loss of amenity in the neighbourhood (for example by
noises and smells). Today, however, these activities are largely
covered by other offences and procedures. Obstructing the
highway is an offence under section 137 of the Highways Act
1980. Other local nuisances are largely covered by a very

77
Archbold Criminal Pleading, Evidence & Practice, 2020 edition, para 31-40
78
Ibid
79
Rimmington; Goldstein [2005] UKHL 63, at 30
22 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

comprehensive and detailed regime of “statutory nuisance”

procedures operated by local authorities; local authorities also
have the power to make bye-laws to suppress nuisances.
In current practice the offence of public nuisance is mainly used
for various forms of misbehaviour in public. Anecdotal evidence
from the College of Policing gives, as typical examples,
obstructing the highway, hanging from bridges, lighting flares or
fireworks at football matches, extinguishing floodlights at
matches, littering forests with excrement and hosting acid house
parties.
[Other] common examples are hoax telephone calls, aggressive
behaviour in public and causing a police siege by attempting or
threatening to blow up or set fire to oneself or a house. In 2009 a
group of men pleaded guilty to conspiracy to commit public
nuisance by making videos threatening bombings. 80
The common law offence is triable either way – meaning it can be tried
in either the magistrates’ court or the Crown Court. There are no
specific limits on the sentence that can be passed for this offence.

4.2 The Law Commission’s review

In 2008 the Law Commission embarked on a project to “simplify” the
criminal law to reflect “changing political and social conditions”. 81 It
identified public nuisance as an example of “a common law offence
which arguably has outlived its utility”. 82
The Law Commission published a consultation paper in 2010, followed
by formal recommendations in 2015. 83 It reached the following
conclusions on public nuisance:
The offence of public nuisance should be replaced by a statutory
offence. This, like the existing offence, should cover any conduct
which endangers the life, health, property or comfort of a section
of the public or obstructs them in the exercise of rights belonging
to the public.
This offence should require that the defendant either intended, or
was reckless as to the risk of, the adverse effect on the public
caused by that conduct. The defendant should not be guilty of the
offence if his or her conduct was reasonable in the circumstances
as he or she knew or believed them to be. 84
The Law Commission proposed that the new statutory offence should
be triable either way, as the common offence is. It noted that the
sentencing powers for public nuisance are currently “unlimited”. It
made no specific recommendation about what the sentencing powers
for the new offence should be, other than to note that

80
Law Commission, Simplification of Criminal Law: Public Nuisance and Outraging
Public Decency, Law Com No 358, June 2015, paras 2.21-2.23
81
Law Commission, Tenth Programme of Law Reform, Law Com No 311, 2008, para
1.19
82
Ibid, para 2.32
83
Law Commission, Project: Simplification of the Criminal Law: Public Nuisance and
Outraging Public Decency [last accessed 10 March 2021]
84
Law Commission, Simplification of Criminal Law: Public Nuisance and Outraging
Public Decency, Law Com No 358, June 2015, para 1.13. See paras 4.1 to 4.8 for a
more detailed formulation of the proposals.
23 Commons Library Briefing, 12 March 2021

as the offence is intended to address serious cases for which

other offences are not adequate, if a maximum sentence is set it
should be high enough to cover these cases. 85

4.3 Clause 59
Clause 59 of the Bill would implement the Law Commission’s
recommendations by abolishing the common law offence of public
nuisance and replacing it with a new statutory offence of intentionally
or recklessly causing public nuisance.
A person would commit the new offence if:
(a) the person—
(i) does an act, or
(ii) omits to do an act that they are required to do by any
enactment or rule of law,
(b) the person’s act or omission—
(i) causes serious harm to the public or a section of the
public, or
(ii) obstructs the public or a section of the public in the
exercise or enjoyment of a right that may be exercised or
enjoyed by the public at large, and
(c) the person intends that their act or omission will have a
consequence mentioned in paragraph (b) or is reckless as to
whether it will have such a consequence.
An act or omission would be considered to have caused serious harm
where a person:
(a) suffers death, personal injury or disease,
(b) suffers loss of, or damage to, property,
(c) suffers serious distress, serious annoyance, serious
inconvenience or serious loss of amenity, or
(d) is put at risk of suffering anything mentioned in paragraphs (a)
to (c).
There would be a defence of “reasonable excuse” for the act or
omission concerned. The Explanatory Notes provide further details:
The burden of proof is placed on the defendant as the facts as to
whether they have a reasonable excuse will be within their
knowledge. The prosecution will still need to have proved all the
elements of the offence to the criminal standard of proof,
including the serious harm or obstruction that arises as a result of
the act or omission, and the defendant intended or was reckless
as to serious harm or obstruction. Although not explicit [sic] set
out, the standard to which the defendant will be required to
prove the defence is the balance of probabilities. 86
The offence would be triable either away and would be subject to the
following maximum penalties:

85
Ibid, para 3.68
86
Explanatory Notes, para 540
24 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

• six months’ imprisonment 87 and/or an unlimited fine on summary

conviction; and
• 10 years’ imprisonment and/or an unlimited fine on conviction on
indictment.
The Government anticipates that the new statutory offence will cover
“the same conduct as the existing common law offence”:
The new statutory offence of public nuisance will cover the same
conduct as the existing common law offence of public nuisance.
The offence captures conduct which endangers the life, health,
property or comfort of the public, or to obstruct the public in the
exercise or enjoyment of rights common to the public.
Conduct captured will include nuisances such as producing
excessive noise or smells, or offensive or dangerous behaviour in
public, such as hanging from bridges. 88

87
This will increase to 12 months as and when paragraph 24(2) of Schedule 22 to the
Sentencing Act 2020 (increase in magistrates’ court power to impose imprisonment)
is brought into force
88
Home Office, Police, Crime, Sentencing and Courts Bill 2021: protest powers
factsheet, updated 10 March 2021
25 Commons Library Briefing, 12 March 2021

5. Part 4, unauthorised
encampments
Part 4 (clauses 61 to 63), of the Bill would amend the Criminal Justice
and Public Order Act 1994 (CJPOA) to:
• create a new offence of “residing on land without consent in or
with a vehicle”; and
• amend the existing police powers in the CJPOA associated with
unauthorised encampments, to lower the threshold at which they
can be used, allow the police to remove unauthorised
encampments on (or partly on) highways and prohibit
unauthorised encampments moved from a site from returning
within twelve months.
Part 4 is associated with a 2019 Conservative Party Manifesto
commitment to “tackle unauthorised traveller camps” by giving the
police new “powers to arrest and seize the property and vehicles of
trespassers who set up unauthorised encampments” and “make
intentional trespass a criminal offence”. The manifesto commitment
was included in 2019 Queen’s Speech. 89
The Government ran a consultation on strengthening police powers to
tackle unauthorised encampments between November 2019 and March
2020. The consultation was prompted when a majority of respondents
to a 2018 consultation on the powers for dealing with unauthorised
development and encampments supported a new criminal offence. 90
The Government published its response to 2019-20 consultation on 8
March 2021. In it the Government said this Bill would include
amendments to the CJPOA, including a new criminal offence associated
with unauthorised encampments. 91

Much of the background in this section has been taken from the Library’s briefing police powers:
unauthorised encampments (published December 2020). That briefing provides further discussion about
the policing unauthorised encampments and the debate during the Government’s strengthening police
powers consultation. It has not been updated to account for the Government’s consultation response.
The Government’s consultation response is discussed in section 3.3 of this briefing.

5.1 What are unauthorised encampments?

Unauthorised encampments occur when trespassers occupy land
belonging to private landowners or public authorities. The term is
associated Gypsy and Traveller sites.
As at January 2020, 3% of Gypsy and Traveller caravans in England
were on unauthorised encampments (694 caravans). 419 of those

89
HM Govt, The Queen’s Speech 2019, December 2019, p73
90
HM Govt, Government response to the consultation on powers for dealing with
unauthorised development and encampments: A summary of consultation responses
and the way forward, February 2019, p23
91
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, p29-30
26 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

caravans were on sites “not tolerated” and 275 were on tolerated

sites. 92

5.2 Existing public order powers

Sections 61-62E, Criminal Justice and Public Order Act 1994 provides
the police with powers to direct those in unauthorised encampments to
leave land based on their behaviour.
Section 61 allows senior officers to direct those in an unauthorised
encampment to leave land if:
• their encampment consists of six or more vehicles; or
• the landowner has taken reasonable steps to ask them to
move and they have caused damage to the land/
property or have used threatening, abusive or insulting
behaviour to the landowner, their family or employees.
Section 62A of the 1994 Act allows a senior officer to direct those in an
unauthorised encampment to leave land if:
• their encampment consists of at least one vehicle and caravan;
• the landowner has asked the police to move the
encampment; and
• the local authority can provide a suitable pitch for the caravans
elsewhere within their local authority area.
Failure to comply with a direction issued by the police under section 61
or 62A of the 1994 Act is an offence. It is also an offence for someone
who has been issued a direction to return to the relevant site within
three months. Those convicted of these offences can be imprisoned for
up to three months or fined. The police also have powers under section
62 and 62C, of the 1994 Act to seize their vehicles.
Use of police powers
The National Police Chiefs Council (NPCC- the coordinating body for UK
police forces) has issued operational guidance on policing unauthorised
encampments. This guidance has been agreed by all chief officer’s in
England, Wales and Northern Ireland. It is kept under review by the
NPPC’s Diversity, Equality & Inclusion Coordination Committee.
The guidance emphasises (as is standard for police powers) that
officers must consider the human rights and Equality Act
2010 protections of those in unauthorised encampments. 93 It says the
“mere presence of an encampment without any aggravating factors
should not normally create an expectation that police will use eviction
powers”. 94 It says the police should “consider becoming involved” in
the removal of unauthorised encampments” when: 95

92
Ministry of Housing Communities & Local Government, Traveller caravan count:
January 2020, June 2020, table 1a
93
NPCC, Operational Advice on Unauthorised Encampments, 2018, p5
94
Ibid, p9
95
Ibid
27 Commons Library Briefing, 12 March 2021

• Local amenities (for example parks, school fields and village

greens) are affected.
• There is a “significant” impact on the environment.
• There is local disruption to the economy. For example, the
encampment is on a shopping centre car park, industrial
estate or agricultural land.
• The behaviour of those in the encampment causes a
“significant disruption to the local community”.
• There is a danger to life. For example, the encampment is
on a motorway.
• There is a need to take action to prevent anti-social
behaviour.
Working with local authorities
The NPCC guidance says:
The lead role for decision making should rest with the local
authority and the use of police powers should not normally be
considered as a first response. 96
It says officers should make an early site visit to a new unauthorised
development with a representative from the local authorities to assess
what action is required. It also says forces should develop ‘Joint Agency
Protocols’ with local authorities (and other partners) for the
management of unauthorised encampments. 97

5.3 Pre-legislative consultation

The Government received 26,337 responses to its strengthening police
powers consultation. More than 16,000 responses were connected to
campaigning by Friends Families and Travellers (FFT- a charity which
represents the interests of Gypsies and Travellers) and Liberty (a human
rights advocacy group). The Government reported the responses
associated with these campaigns separately in their consultation
response document. 98
Criminalising unauthorised encampments
The Government’s consultation asked for views on a new offence
associated with entering or occupying land subject to certain conditions
being met. The consultation also asked for views on what those
conditions could be. 99
The Home Office suggested a new offence similar to one that exists in
the Republic of Ireland. 100 Under Part IIA of the Republic of Ireland’s
Housing (Miscellaneous Provisions) Act 2002, people commit an offence
if they occupy land or bring an object onto land when likely to cause

96
NPCC, Operational Advice on Unauthorised Encampments, 2018, p8
97
Ibid, p8
98
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, p12
99
Home Office, Strengthening police powers to tackle unauthorised encampments,
November 2019, p10
100
Ibid
28 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

substantial damage or prevent people from accessing/ utilising the

land. 101 Garda can require those who commit the offence to provide
their name or issue them a direction requiring them to leave. Failure to
comply with such a Garda instruction is an offence for which people can
be arrested without warrant. Those guilty of these offences are liable to
a fine of €3,000 or one-month imprisonment.
A small majority (55%) of direct responses to the Government
consultation disagreed that “intentional trespass” should be a criminal
offence. 102 The Liberty and FFT campaigns opposed criminalising
intentional trespass. 103 An e-petition, which garnered 134,932
signatures, also opposed the proposal. It called the idea “extreme,
illiberal and unnecessary” and raised concerns with how a new criminal
offence would impact ramblers. The House was scheduled to debate the
e-petition, but the debate was postponed when sittings of Westminster
Hall were suspended at the start of the third coronavirus lockdown. 104
The Government says there is an “appetite to extend powers available
to the police when dealing with unauthorised encampments”
particularly from local authorities. 105 It says it the new offence, in
combination with its proposed amendments to the CJPOA will…
give police the tools to deal with a variety of harms caused by
unauthorised encampments in a proportionate, effective and
efficient manner. 106
It says the new offence will not affect ramblers and that its intention is
to “deter trespassers from setting up or residing on an unauthorised
encampment.” 107
Strengthening police powers
The Government’s consultation asked for views on: 108
• Amending section 62A to allow the police to direct those in
unauthorised encampments to authorised sites in neighbouring
local authority areas. At present the police can only move
unauthorised encampments to authorised sites within the local
authority area.
• Amending sections 61 and 62A to prohibit those directed from
land from returning within twelve months. At presented those
directed to leave land under the 1994 Act cannot return within
three months.

101
Part IIA, s19C, Housing (Miscellaneous Provisions) Act, 2002 [Republic of Ireland
statute book]
102
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, p13
103
Ibid, p25 & p28
104
UK Parliament, Closed petition: Don’t criminalise trespass, last updated 13 January
2020
105
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, p23
106
Ibid, p7
107
Ibid, p24
108
Home Office, Strengthening police powers to tackle unauthorised encampments,
November 2019, p6
29 Commons Library Briefing, 12 March 2021

• Amending section 61 to lower the number of vehicles needing to

be involved in an unauthorised encampment before it can be used
from six to two.
• Amending section 61 to enable the police to remove trespassers
from land that forms part of the highway.
Consultation responses to these ideas were mixed but in total 94% of
direct respondents supported at least one of the proposed changes to
the CJPOA. The FFT and Liberty campaigns were opposed to any change
of the CJPOA. They argued the police powers are strong enough
already. 109
The Government decided not to amend the CJPOA to allow the police
to move unauthorised encampments to a neighbouring local authority
area. It said this could be “counter-productive” because it could “deter
local authorities from developing more authorised site provision”. 110
The Government also decided not amend section 61 to lower the
number of vehicles involved in an unauthorised encampment before
powers can be used. Instead the Bill includes amendments to section 61
that the Government did not consult on. The Government is proposing
to amend section 61 to broaden the types of harm that can be caught
be the power. 111 It says this change will be “fairer and more
proportionate” and ensure the measures are “compliant with human
rights law”. 112
The Government is proposing CJPOA amendments which would allow
the police to move unauthorised encampments on highways.
Amendments would also stop unauthorised encampments returning to
any site they have been moved from within twelve months. 113
Discrimination
Gypsy and Travellers are protected under the Equality Act 2010 as a
recognised ethnic group.
FFT and Liberty argue strengthening the existing legal framework for
unauthorised encampments will put Gypsy and Travellers at risk of
further discrimination. Over 70% of direct responses to the
Government’s consultation expressed the view that the polices would
have a negative impact on Gypsies and Travellers. 114
The Government acknowledged its proposals “could have an adverse
impact on some members” of the Gypsy and Traveller community.
However, it also “recognise(s) the distress that local communities and
businesses face as a result of unauthorised encampments”. 115

109
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, see Chapter 4, 9, 10 and 11
110
Ibid, p31
111
Ibid, p30-31
112
Ibid
113
Ibid, p29
114
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, p21
115
Home Office, Strengthening police powers to tackle unauthorised encampments,
November 2019, p20
30 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

The Government says it wants “all communities to be able to live as

they deem best, without harming others” but that it is “clear that there
needs to be rules and fair boundaries to achieve this”. 116 It says it has
been “mindful of its duty to comply with the ECHR and the Equality Act
2010”. 117 It says the use of the new powers will be…
…predicated on the basis that enforcement action must be
exercised where it is proportionate and necessary to do so and
should be taken in conjunction with the local authority, who
would need to offer assurance that they have relevant measures
in place to meet the welfare and safeguarding needs of those
affected by the loss of their accommodation. 118

Site availability
Everyone enjoys a right to a family and private life under Article 8 of the
European Convention on Human Rights (ECHR. In Bromley LBC v
Persons Unknown [2020] Lord Justice Coulson noted that a lack of site
availability could breach the Art 8 rights of Gypsy and Travellers:
I consider that there is an inescapable tension between the article
8 rights of the Gypsy and Traveller community and the common
law of trespass. The obvious solution is the provision of more
designated transit sites for the Gypsy and Traveller community. It
is a striking feature of many of the documents that the court was
shown that the absence of sufficient transit sites has repeatedly
stymied any coherent attempt to deal with this issue. The reality is
that, without such sites, unauthorised encampments will continue
and attempts to prevent them may very well put the local
authorities concerned in breach of the Convention. 119
FFT obtained police submissions to the strengthening police powers
consultation via a Freedom of Information request. They say the FOI
responses show that many senior police officers are not in favour of
criminalising trespass and think the current police powers framework is
sufficient. 120 FFT quote the NPCC as saying:
The lack of sufficient and appropriate accommodation for Gypsies
and Travellers remains the main cause of incidents of
unauthorised encampment and unauthorised development by
these groups. 121
FFT argue that the problems caused by unauthorised encampments are
more effectively tackled by providing more authorised space for
nomadic Travellers. 122
The Government says the number of transit pitches has “increased by
41% (356 pitches) across England and Wales over the last 10 years”. It

116
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, p27
117
Ibid, p26
118
Ibid, p23
119
[2020] EWCA Civ 12, para 100
120
FFT, Police repeat calls for more sites, rejecting Home Office proposals to criminalise
trespass, 9 September 2020
121
The Guardian, Revealed: police oppose Traveller and Gypsy camp crackdown, 14
November 2020
122
FFT, Police repeat calls for more sites, rejecting Home Office proposals to criminalise
trespass, 9 September 2020
31 Commons Library Briefing, 12 March 2021

“reminded local authorities of the importance of providing sites in their

local plans” but said ultimately it was up to them to identify land for
sites. 123

5.4 Clauses 61 to 63
Clause 61 would insert section 60C, 60D and 60E into the Criminal
Justice and Public Order Act 1994 (CJPOA). This would create a new
offence of “residing on land without consent in or with a vehicle” and
give the police seizure and forfeiture powers associated with that
offence. The Government described the new offence in plain English in
the “next steps” section of its response to the Strengthening police
powers consultation.
Under the new section 60C CJPOA people over the age of 18 would
commit an offence if they reside or intend to reside on land without
consent and:
• they intend to have or have at least one vehicle with them;
• one or more of the conditions in subsection 60C(4) are met; and
• they fail “as soon as reasonably practicable” to move when
directed to by the owner, someone representing them or the
police.
The conditions in subsection 60C(4) are that they cause or are “likely to
cause” “significant damage or disruption” as a result of either residing/
intending to reside on the land or their conduct/ potential conduct
whilst on the land. This is a higher threshold than what is needed to use
the amended section 61 CJPOA powers.124 In accordance with
subsection 60C(8) “damage” includes damage to land, the environment
or any property not belonging to the trespassers. “Disruption” means
an interference with a person’s ability to access any services/ facilities on
the land, the water/ energy/ fuel supply, agricultural buildings or
monuments/ archaeological areas.
Under the new section 60C CJPOA it would be an offence to re-enter
the land without a “reasonable excuse” within twelve months of being
asked to move.
The fact that landowners (or someone representing them) can ask
trespassers to leave land means an offence could be committed before a
police direction is issued. This would give the police the power to arrest
trespassers as soon as they arrive to a scene where landowners had
asked trespassers to move in accordance with the new section 60C. 125
The offence therefore has the potential to capture more people than
the Republic of Ireland (RoI) offence the Government referenced in its
Strengthening police powers consultation. In the RoI an offence is only
committed once someone has failed to comply with a police direction.

123
Home Office, Government Response to the Consultation ‘Strengthening Police
Powers to Tackle Unauthorised Encampments’ A Summary of Consultation
Responses and the Way Forward, March 2021, p24
124
ENs, para 560
125
ENs, para 559
32 Police, Crime, Sentencing and Courts Bill: Part 3 and 4, Public order and unauthorised
encampments

The new section 60C offence would be summary only. This means it
would only be triable at a Magistrate’s court. On conviction the
punishment would be a term of imprisonment not exceeding three
months, a fine not exceeding level four on the scale (£2,500) or both.
The new section 60D CJPOA would give officers the power to seize and
remove any relevant property, including vehicles, from those they
“reasonable suspect” have committed an offence under section 60C (a
similar evidential test as officers have to meet to arrest). Property seized
by the police under section 60D could be kept for up to three months.
The new section 60E CJPOA would allow the court to issue forfeiture
orders relating to items seized under section 60D when people are
convicted of a section 60C offence.
Clause 62 would amend the existing police powers in the CJPOA
associated with unauthorised encampments.
Section 61 of CJPOA would be amended so it could be used when
those in unauthorised encampments cause “damage, disruption or
distress”. This damage, disruption or distress would not have to be
“significant” (as it does under the new offence). Damage and disruption
have the same definition as in the new section 60C. 126
Section 61 would also be amended so police can direct trespassers to
move if they are on land that forms part of a highway.
Clause 62 would amend section 62 of the CJPOA so that police can
seize vehicles in the same way as they can under the new section 60D
when they use their amended section 61 powers.
Clause 63 would introduce a new section 62F into the CJPOA requiring
the Secretary of State to issue guidance to police on their powers in the
CJPOA related to unauthorised encampments. It would confer a power
on the Secretary of State to revise this guidance when they see fit. There
are no statutory rules about how this guidance should be drafted and
published.

126
ENs, para 572-574
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